Superior Court of New Jersey, Appellate Division.

DOCKET NO. A–2844–11T3

Decided: April 14, 2014

Before Judges Alvarez and Ostrer.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).

Defendant, a non-citizen from Jamaica, appeals from the trial court's August 30, 2011 order denying post-conviction relief (PCR) after a non-testimonial hearing. Defendant sought relief from a conviction based on his guilty plea to second-degree eluding, N.J.S.A. 2C:29–2(b). The court sentenced defendant on December 23, 2004 to a six-year term of incarceration (a year less than the plea agreement contemplated), concurrent with the remainder of a federal sentence defendant was then serving for an embezzlement-related offense, and a nine-month sentence for contempt of a domestic violence restraining order, which the Law Division imposed in September 2004.

Defendant argues that his trial attorney was ineffective by failing to advise him of the potential immigration consequences of his plea. He also argues that his PCR counsel was ineffective by failing to obtain the transcript of his plea hearing. The evidence reflects that defendant misrepresented at his plea hearing that he was a United States citizen. Consequently, his trial attorney was not obliged to review the immigration consequences of a conviction on a non-citizen. We therefore affirm.

I.

We discern the following facts from the record. Defendant was born in Jamaica in August 1971, and lawfully moved to the United States when he was nine years old. His parents became United States citizens. His two sisters are also citizens. But, defendant remained a permanent legal resident. A graduate of Fordham University, he worked in mortgage finance.

Defendant certified in support of his pro se petition that his attorney did not advise him about any immigration consequences of his plea. He alleged his attorney also did not review with him question number seventeen on the plea form. The question asked, “Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?” The response “N/A,” or not applicable, was circled. In his unsworn pro se brief, defendant argued that his attorney affirmatively misinformed him “that his criminal proceedings had no bearing on his Lawful Permanent Resident status in the United States.”

Defendant also argued, that “[a]t no time” during his plea hearing before Judge William Meehan “was the issue of [his] citizenship or Lawful Permanent Resident status raised.” A transcript of the plea hearing was not provided to the PCR court. Defendant asserted that if his attorney had adequately informed him of the immigration consequences of his plea, he would not have pleaded guilty.

Defendant's argument is belied by the record of the plea hearing, which was obtained after the PCR hearing. The transcript reflects that Judge Sebastian Gaeta, not Judge Meehan, presided over the plea hearing.1 Judge Gaeta expressly asked defendant, “Are you a citizen of the United State[s] of America?” Defendant responded, “Yes, I am.” Judge Gaeta also confirmed that defendant reviewed the plea form with his attorney and all the statements were true and accurate.

Judge Donald R. Venezia denied defendant's petition for PCR. Although the judge lacked the benefit of the transcript of defendant's plea hearing, he concluded that defendant misinformed plea counsel that he was a citizen. Judge Venezia relied on defendant's pre-sentence report, which included defendant's Uniform Defendant Intake form (UDI), dated August 12, 2004, indicating that defendant was a United States citizen. The form reported, “The defendant stated he became a U.S. Citizen [in] 1998–99.” The judge also reasoned that “N/A” was likely circled in response to question seventeen because defendant stated he was a citizen.

Judge Venezia applied the well-settled two-prong test for determining whether defendant was entitled to PCR. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L. Ed.2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). The judge concluded that because defendant misrepresented his citizenship, counsel had no professional duty to discuss the immigration consequences of his plea, and there was no ineffective assistance of counsel. Judge Venezia also concluded there was no prejudice, as there was no reasonable probability that the outcome would have been different.

On appeal, defendant presents the following points for our consideration:

POINT ONE

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF PCR COUNSEL.

POINT TWO

THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT, AS A RESULT OF HIS PLEA AGREEMENT, HE WOULD BE DEPORTED, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT THREE

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

POINT FOUR

THE TIME BAR OF R. 3:22–12 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

II.

Defendant does not address the fact that he misrepresented to Judge Gaeta that he was a citizen. Although defendant filed his initial brief before the State obtained the transcript of his plea hearing, defendant filed no reply. In his brief, defendant instead addressed the statement, attributed to him in the UDI, that he was a citizen. Defendant argued that there was no evidence that defense counsel had reviewed the report with him and argued that trial counsel was responsible for determining whether defendant was a citizen.

We affirm the denial of PCR substantially for the reasons set forth by Judge Venezia, which are bolstered by the evidence, now available, that defendant misrepresented his immigration status at his plea hearing. It is well-settled that an attorney renders ineffective assistance when he affirmatively misinforms a client about the immigration consequences of a plea. State v. Nuñez–Valdéz, 200 N.J. 129, 140–42 (2009). Beginning with the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L. Ed.2d 284 (2010), but not retroactive to defendant's plea hearing in 2004, an attorney must do more than avoid misinformation; an attorney must advise a client when removal is mandatory. See Chaidez v. United States, _ U.S. _, _, 133 S.Ct. 1103, 1113, 185 L. Ed.2d 149, 162 (2013) (stating Padilla is prospective); State v. Gaitan, 209 N.J. 339, 367, 371 (2012) (same), cert. denied, _ U.S. 1454, 133 S.Ct. 1454, 185 L. Ed.2d 361 (2013).

The record before us fails to establish a prima facie case that counsel affirmatively misinformed defendant. Rather, the record demonstrates that defendant misrepresented that he was a United States citizen — both to the probation officer preparing defendant's UDI, which was included in his presentence report, and on the record under oath, before the judge accepting his plea.2 Consequently, defendant has failed to establish a prima facie case that his attorney was ineffective by, allegedly, failing to inform him of the immigration consequences of his conviction as a non-citizen. Defendant's remaining arguments that trial and PCR counsel were ineffective lack sufficient merit to warrant any further discussion in a written opinion. R. 2:11–3(e)(2).

Given our disposition, we need not address the State's argument that defendant's petition was time-barred under Rule 3:22–12.

Affirmed.

FOOTNOTES

1. FN1. The State explained in its brief to us that the official reporters had difficulty locating the record of the plea hearing, apparently because they were unaware that the plea was entered before Judge Gaeta, and not Judge Meehan, who conducted a status conference earlier that day, and imposed the sentence. The State obtained the transcript in July 2013. The State should have formally sought leave to supplement the record, as the transcript was not presented to the trial court. See R. 2:5–5. However, as defendant has not objected, we shall consider it. Also, we discern no need to remand the case to allow the trial court to consider the additional evidence, given the court's decision.

2. FN2. We recognize that some defendants may misunderstand or be uncertain about their own immigration status. See César Cuauhtémoc García Hernández, Criminal Defense After Padilla v. Kentucky, 26 Geo. Immigr. L.J. 475, 515 (2012) (acknowledging that “[c]itizenship is a highly complex area of law”). However, defendant is a college graduate. His parents had become naturalized. He certified that he was a permanent resident in his PCR petition. There is no evidence that he was simply mistaken when he represented that he was a citizen, and he has provided none. Particularly because defendant's plea precedes Padilla, this is not the case to define the scope of an attorney's duty, post-Padilla, to ascertain a defendant's actual status before determining whether to provide advice about immigration consequences. See id. at 515–18 (arguing that a defense attorney should examine the underlying facts and determine independently whether a client is a citizen).